1. The Grand Duchy
of Luxembourg hereby submits its third report to the Committee against Torture
in accordance with article 19, paragraph 1, of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

2. This report
supplements the preceding reports submitted by Luxembourg. Several ministers
have taken part in its preparation. Some non‑governmental organizations
were also contacted to provide their analysis of the situation in Luxembourg.

3. In accordance
with the new guidelines for the submission of reports (CAT/C/14/Rev.1) adopted
by the Committee against Torture on 2 June 1998, this report is divided
into three parts, i.e. part I describing the most important changes
in legislation and institutions, monitoring by the authorities and specific
measures taken as a result of complaints filed by individuals; part II
on the additional information requested by the Committee; and part III
on measures taken to give effect to the Committee’s conclusions and recommendations.

4. Many of
the reforms which were referred to during the introduction to the second report
and which have considerably strengthened the country’s legislative arsenal have
since been voted on by the Chamber of Deputies. New institutions have been
established, including the Advisory Commission on Human Rights, the General
Police Inspection Department and the new Grand Ducal Police, which was
created following the merger of the former police and gendarmerie forces, and
specific measures have been taken in certain areas, particularly with regard
to the problem of prison suicide and drug addiction.

PART
I

I. INFORMATION ON
NEW MEASURES RELATING TO THE
IMPLEMENTATION OF THE CONVENTION

A. Article 2

5. Torture
and cruel treatment are punishable under the Luxembourg Penal Code:

(a)
Directly, under the provisions specifically relating to acts of torture (chap. V‑1,
arts. 260-12 to 260-4, introduced by the Act of 24 April 2000);

(b)
Indirectly, under the provisions relating to offences involving abuse of authority
(art. 257 of the Penal Code) and wilful infliction of bodily harm (arts.
398 to 401 bis of the Penal Code);

(c)
Directly, as an aggravating circumstance of a crime or offence against a person
(for example, physical torture of a detainee: art. 438 of the Penal Code) or
as an aggravating circumstance of a crime or offence against property (for example,
extortion or theft committed with violence or with threats: art. 473 of the
Penal Code);

(d)
Under special laws (referred to in Luxembourg’s additional report of 15 October 1991
(CAT/C/5/Add.29)).

6. The Act
of 24 April 2000 adapting internal law to the provisions of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified
by the Act of 31 July 1987, incorporates a new chapter V-1 in book II of the
Penal Code (arts. 260‑1 to 260-4).

7. Previously,
only acts committed by individuals against other individuals were specifically
characterized as acts of torture by the Penal Code (art. 438). As a result
of the introduction of the new article 260-1, the Penal Code now also specifically
punishes acts of torture committed by persons in the public sector. The text
of this provision, which is based broadly on the definition of acts of torture
contained in article 1 of the Convention, reads:

“Article 260-1.
Any public official in a position of authority, any public servant or any one
acting at the instigation or with the express or tacit consent of such an individual
who wilfully inflicts torture in such a manner as to cause pain or acute physical
or mental suffering in order to extract information or confessions from an individual
or third party; to inflict punishment for an act which an individual or third
party has either committed or is suspected of having committed; to intimidate
or put pressure on an individual or third party; or for any other reason based
on any form of discrimination whatsoever shall be punishable by five to 10 years’
imprisonment.”

8. Articles
260-2, 260-3 and 260-4, which gradually increase the penalties depending on
the type of harm or injury resulting from acts of torture, read:

“Article 260-2.
If the torture inflicted has resulted in illness or incapacity for work, the
penalty shall be 10 to 15 years’ imprisonment.

Article
260-3. If the torture inflicted has resulted in apparently incurable
illness, permanent incapacity for work, complete loss of use of an organ or
severe mutilation, the penalty shall be 15 to 20 years’ imprisonment.

Article
260-4. If the torture inflicted has caused death, albeit unintentionally,
the penalty shall be life imprisonment.”

9. It should
be noted that these provisions relate not only to traditional physical torture,
but also to mental torture, which is more subtle and more a reflection of modern
times.

10. Even if such
acts are still fortunately unknown in Luxembourg at present, criminal legislation
has been adapted in order better to guarantee the prevention and punishment
of this type of conduct.

B. Article 3

11. This article
of the Convention prohibits the expulsion, return (“refoulement”) or extradition
of a person to a State where there are substantial grounds for believing that
he would be in danger of being subjected to torture or similar treatment.

12. Article 14,
paragraph 3, of the Act of 28 March 1972 (amended) on (1) the entry and residence
of aliens; (2) medical examinations for aliens; and (3) the use of foreign labour
states that an alien may not be expelled or deported to another country
if it can be established that he would be subjected to the treatment referred
to in articles 1 and 3 of the Convention (see the 1991 report (CAT/C/5/Add.29)
and the 1998 report (CAT/C/17/Add.20) of Luxembourg).

13. The Kosovo
crisis showed that the basic provisions of the Convention relating to the Status
of Refugees, signed in Geneva on 28 July 1951 and ratified by Luxembourg by
means of the Act of 22 May 1953, and the national procedure provided for by
the Act of 3 April 1996 on the consideration of asylum applications were no
longer suitable and did not enable the authorities to handle asylum applications
within a reasonable time when a large‑scale inflow of refugees occurred.

14. With the
encouragement of the Office of the United Nations High Commissioner for Refugees
(see opinion of 13 September 1999, parliamentary document No. 4572/5), the lawmakers
set up two additional systems by means of the Act of 18 March 2000 establishing
a temporary protection regime and amending the Act of 3 April 1996 (amended)
establishing a procedure for the consideration of asylum applications:

(a)
A temporary protection regime to enable the authorities to deal speedily, in
a well-defined case of a large-scale inflow of asylum-seekers, with the asylum-seekers’
legal and administrative situation during their stay in Luxembourg territory;

(b)
A measure by the Aliens Department enabling the Minister of Justice to grant
special status to asylum-seekers whose deportation is materially impossible.

15. The Act of
24 April 2000 adapting internal law to the provisions of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also adds
some provisions to the Foreign Criminals Extradition Act of 13 March 1870.

16. In particular,
the following article 8-1 was included in the 1870 Act:

“Article 8-1.
No person shall be extradited where there are substantial grounds for believing
that he would be in danger of being subjected to torture as defined in articles
1 and 3 of the United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment and article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms.”

C. Article 4

17. As already
indicated in connection with article 2 above, in addition to the provisions
of the Penal Code on murder and wilful infliction of bodily harm (arts. 398
et seq. of the Penal Code) and the provisions relating specifically to acts
of torture inflicted by individuals (art. 438 of the Penal Code), which provide
for terms of imprisonment varying in length according to the seriousness of
the harm or injury suffered by the victim, articles 260-1 to 260-4, which were
recently introduced in the Penal Code by the Act of 24 April 2000 adapting internal
law to the provisions of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, also provide for a system by which prison
terms vary according to the harm or injury suffered by the victim of acts of
torture.

18. Just as acts
of torture are characterized as crimes, so are attempt and complicity (book
I, chap. IV: “Attempted crimes and offences”, arts. 51 and 52 of the Penal
Code, and chap. VII: “Participation by several persons in the same crime or
offence”, arts. 66 to 69).

D. Article 5

19. In addition
to the classification of acts of torture in articles 260-1 to 260-4, the Act
of 24 April 2000 has, in accordance with article 5, paragraph 1 (c),
of the Convention, introduced a new article 7-3 in the Code of Pre-Trial
Proceedings, which reads:

“Article 7-3.
Anyone outside the territory of the Grand Duchy who has committed one of the
offences provided for in articles 260-1 to 260-4 of the Penal Code against a
citizen or resident of Luxembourg can be prosecuted and tried in the Grand Duchy.

However,
no proceedings shall be instituted against an accused person who has been tried
for the same offence in a foreign country and acquitted.

The
same shall apply if, having been tried and convicted, he has served his sentence
or the punishment has been time barred or he has been pardoned.

Any
period of detention served abroad in consequence of the offence which gives
rise to a conviction in the Grand Duchy shall be set against the period of any
custodial sentence.”

20. This new
article thus establishes extraterritorial jurisdiction for Luxembourg courts
in order to cover the case in which the victim of one of the acts referred to
articles 260‑1 to 260‑4 of the Penal Code is a Luxembourg national
or a resident of the Grand Duchy.

21. In accordance
with the objectives of article 3, paragraph 1, and article 5, paragraph 2,
of the Convention and in order to ensure that the perpetrator of an act
of torture within the meaning of articles 260-1 to 260-4 of the Penal Code does
not go unpunished as a result of non‑extradition, the Act of 24 April
2000 established active universal jurisdiction by introducing the following
new article 7-4 in the Code of Pre-Trial Proceedings:

“Article 7-4.
Anyone in a foreign country who has committed one of the offences provided for
in articles 260-1 to 260-4 of the Penal Code can be prosecuted and tried in
the Grand Duchy when an application for extradition has been submitted, but
the person concerned has not been extradited.”

E. Article 6

22. It should
be pointed out that, on the basis of the recommendations made by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) in its two reports to the Government of Luxembourg dated 12 November 1993
and 27 June 1997, the Act of 24 April 2000 also updated the guarantees available
to any person in detention under article 39 (police custody) and article 45 (identity
check) of the Code of Pre-Trial Proceedings.

23. With regard
to police custody, as referred to in article 39 of the Code of Pre‑Trial
Proceedings, a detainee is now formally informed by law enforcement officials,
at the time of his arrest and in a language he understands, except in duly recorded
cases of material impossibility, of his right to ask to be examined by a medical
officer and his right to the assistance of legal counsel. He is also informed
of his right to notify a person of his choosing, if the requirements of the
investigation so permit.

24. Article 39,
paragraph 8, now provides that a detainee’s records must also indicate the day
and time at which he was informed of his rights, as well as, if necessary, the
reasons for a denial of or a delay in the implementation of his right to notify
a person of his choosing.

25. In practice,
a pre-printed note listing the rights to which he is entitled and drafted in
a language he understands is to be handed to the detainee at the time of his
arrest.

26. The procedure
for identity checks referred in article 45 also now makes it an obligation for
law enforcement officials to provide the person detained for an identity check
with a formal notification in writing, against a receipt and in a language he
understands, except in duly recorded cases of material impossibility, of his
right to notify a person of his choosing and to have the Public Prosecutor informed.

F. Article 7

27. The Act of
24 April 2000 adapting internal law to the provisions of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also provided
for additions to the list contained in article 1 of the Foreign Criminals Extradition
Act (amended) of 13 March 1870 on offences for which extradition may be granted
and for the inclusion of the offences referred to in the new articles 260-1
to 260-4 of the Penal Code.

28. If, as an
exception, Luxembourg did not extradite a person wanted by another State for
trial on a charge of torture, that person would be tried by Luxembourg courts
either on the basis of their jurisdiction under article 5 of the Code of Pre-Trial
Proceedings, in the case of a Luxembourg national, or, more generally, on the
basis of the new article 7-4 of that Code (see art. 5 above).

29. The obligations
deriving from article 7 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment are directly applicable in Luxembourg.

G. Article 8

30. The obligations
deriving from article 8 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment are also directly applicable in Luxembourg,
so that, as far as Luxembourg is concerned, the offences referred to in article 4
of the Convention are automatically included in any extradition treaty concluded
with another party to the Convention.

31. As stated
above in connection with article 7, the Act of 24 April 2000 made some additions
to the list of offences in the Foreign Criminals Extradition Act (amended) of 13 March 1870
for which the courts may, in the absence of a treaty, order the extradition
of a foreign criminal in the Grand Duchy of Luxembourg to the requesting foreign
authorities.

H. Article 9

32. As a result
of the adoption of the Act of 8 August 2000 on International Judicial Assistance
in Criminal Matters, Luxembourg has new legislation on judicial assistance that
substitutes more complete regulations for the earlier regime, which consisted
only of the provisions of article 59 of the Judicial Organization Act (amended)
of 7 March 1980.

33. It should
also be pointed out that Luxembourg and its European Union partners recently
signed the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters
between the Member States of the European Union, which supplements earlier instruments
that are binding on those States.

I. Article 10

34. With regard
to the education and training of persons who may be in contact with any individual
subjected to any form of arrest, detention or imprisonment, it should be noted
that, at the time of recruitment, future police and criminal investigation officers
are given a psycho‑technical test monitored by a psychologist. In order
to guarantee training in the prevention of any abuse of police powers, the subjects
taught at the Police Training School are very diversified and include: constitutional
freedoms, the rights and duties of officials, assistance to victims, conduct
vis‑à-vis citizens, conduct in situations of violence, conflict management,
police ethics, human rights, the rules contained in the Code of Pre‑Trial
Proceedings, the Penal Code and special laws, the conduct of an investigation,
the hearing of evidence and response methods. Now that the former police and
the former gendarmerie form a single Grand Ducal police force, police training
has also been standardized by the Police Training School.

35. In order
to give future police officers the best training, as well as high-quality in-service
instruction, courses are taught by persons with the most thorough knowledge
of the subjects offered, i.e. by senior police officials and, in the case of
the ethics course, by the Grand Ducal General Police Inspector or by professors
or lecturers.

36. On the basis
of such instruction, the “human rights” course is coordinated with representatives
of Amnesty International and role playing courses are organized in cooperation
with the Support Association for Immigrant Workers (ASTI).

37. The report
on the training of prison staff is annexed to the present report. Since prison
guards have to perform voluntary military service, they receive instruction
in human rights and the prevention of torture during their basic training.

38. Respect for
the inherent dignity of the human person is a primary obligation of prison administrators
and is provided for in article 16 of the Grand Ducal regulations of 24 March 1989
on the internal administration and regulations of prisons. In addition to the
related provisions of the Penal Code, article 52 prohibits, inter alia,
prison staff from committing acts of torture or cruel, inhuman or degrading
treatment or punishment and acts of violence against detainees and from using
insulting, vulgar or familiar language with them.

39. The staff
of State Socio-Educational Centres is composed of the following:

(a)
Educator instructors;

(b)
Educators;

(c)
Graduate educators;

(d)
Psychologists and social welfare workers.

40. They receive
three types of training:

(a)
Administrative Training Institute (IFA) courses, which relate primarily to the
subject of the rights of the child;

(b)
Workshops (four in 1999);

(c)
Supervision.

J. Article 11

41. In accordance
with articles 15-2 and 21 of the Code of Pre-Trial Proceedings, the supervision
and monitoring of the criminal investigation service as a whole, i.e. criminal
investigation police officers and officials and agents empowered by law to act
as criminal investigation police officers acting in that capacity, are the responsibility
of the Public Prosecutor.

42. As indicated
above in connection with article 6, the guarantees to which a detainee is entitled
and which the lawmakers provided for in articles 39 and 45 of the Code of Pre-Trial
Proceedings on police custody and identity checks by law enforcement officials
were supplemented by the Act of 24 April 2000.

43. Henceforth,
a person arrested by law enforcement officials is informed in writing and against
a receipt, in a language he understands, of his right to communicate with a
person of his choosing. A telephone is made available to him for this purpose.

44. A person
arrested by law enforcement officials is also informed, according to the same
methods, at the time of arrest, of his right to be examined without delay by
a medical officer. Intervention by a medical officer may also be ordered by
the Public Prosecutor at any time, as a matter of course or at the request of
a family member.

45. If they consider
it necessary, law enforcement officials may also summon a medical officer directly.

46. Prison management
and surveillance come under the authority of the Public Prosecutor and the representative
of the Public Prosecutor appointed especially for this purpose, respectively.

47. At the Dreiborn
and Schrassig State Socio-Educational Centres, supervision is carried out by
the Supervision and Coordination Commission (CSC), which is composed of representatives
of the Minister of the Family, the Minister of National Education and the Public
Prosecutor.

K. Article 12

48. There are
no specific procedural provisions governing the crime of torture. However,
ordinary law provides certain guarantees to ensure that an inquiry is opened.

49. For example,
where criminal inquiries are concerned, the Public Prosecutor may take up the
case ex officio. In practice, a preliminary inquiry is always ordered when
injury to persons is suspected.

50. In criminal
cases, referral to an examining magistrate is obligatory.

51. In disciplinary
cases, an inquiry must be ordered by the commanding officer on learning of a
serious breach of professional obligations. An allegation of police brutality,
for example, is invariably considered to be a serious breach leading to disciplinary
action.

52. A table of
cases involving allegations of ill-treatment by police officers, with an indication
of follow-up, is annexed to this report.

L. Article 13

53.
Article 1 of the Code of Pre-Trial Proceedings states that: “Criminal proceedings
for the enforcement of penalties are instituted and conducted by judges or officials
specified by law. Proceedings may also be instituted by the injured party,
under the conditions provided for in this Code or in special laws”.

54. Ordinary
law procedures are applicable to cases of torture or inhuman, cruel or degrading
treatment. They guarantee the right of all victims to file a complaint, with
either the criminal investigation police, the Public Prosecutor or an examining
magistrate. This right is unlimited.

55. In its coalition
agreement (governmental statement of August 1999), the Government indicated
that it wanted to make further improvements in the situation of victims of offences
by providing them with appropriate legal, material and moral assistance, which
might be extended to members of their families. A bill designed to improve
protection for the victims of offences and for witnesses is currently being
prepared.

56. A victims’
aid service has been in operation since 1997 as part of the Central Social Protection
Service of the Public Prosecutor’s Office.

M. Article 14

57.
Under articles 2 and 3 of the Code of Pre-Trial Proceedings, a civil suit for
compensation for loss or injury suffered by a victim of torture may be brought
by the victim against the accused and his or her representatives, either before
the court hearing the criminal proceedings or separately before a civil court.

58. The Act of
1 September 1988 relating to the civil liability of the State and public communities
stipulates that the State and other public agencies are accountable, each in
the framework of its public service mandate, for any loss or injury caused by
the malfunctioning of their services, subject to the doctrine of res judicata.

59. Generally
speaking, victims of intentional acts of violence or their rightful claimants
are, when unable to obtain compensation through other means, for example, because
the person responsible for the offence is not known or is insolvent, entitled
to compensation from the State of Luxembourg under the conditions provided for
by the Act (amended) of 12 March 1984 relating to compensation for certain victims
of bodily injury and the punishment of fraudulent insolvency. This is an extra
guarantee of compensation which the State provides to victims of violent crimes
such as torture.

N. Article 15

60. The principle
that evidence must be obtained through legal means is firmly established in
French, Belgian and Luxembourg legal scholarship and legal decisions. There
is thus little likelihood of a departure from this line, especially as, where
evidence obtained under torture is concerned, article 15 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is self-executing
in Luxembourg.

61. To guarantee
that judicial proceedings will be objective, article 52 of the Code of Pre‑Trial
Proceedings prohibits criminal investigation police officers from interrogating
an accused person after his first appearance before the examining magistrate
or, for any reason whatsoever, when the individual concerned is being held in
pre-trial detention.

O. Article 16

62. It should
be noted at the outset that, in accordance with article 14 of the Luxembourg
Constitution, no penalty may be established or applied except in accordance
with a law.

63. Cruel, inhuman
or degrading treatment or punishment other than torture is punishable under
the Luxembourg Penal Code, as follows:

(a)
Under the provisions relating to abuse of authority (art. 257) and wilful infliction
of bodily harm (arts. 398 to 401 bis);

(b)
As an aggravating circumstance of an offence against persons or property (for
example, incitement to prostitution: art. 379 bis; extortion or theft
committed with violence or with threats (art. 473));

(c)
Under special laws (referred to in Luxembourg’s initial report of 15 October 1991
(CAT/C/5/Add.29)).

64. Given that
the traffic in human beings and the sexual exploitation of children also constitute
inhuman and degrading treatment and are becoming an important and serious form
of international crime, the Act of 31 May 1999 strengthening measures against
the traffic in human beings and the sexual exploitation of children and amending
the Penal Code and the Code of Pre‑Trial Proceedings has strengthened
the system of protection for children, adapted or supplemented the Penal Code
on certain points and extended Luxembourg law to cover all sexual crimes or
offences committed abroad by a Luxembourg national or a person residing in Luxembourg
territory.

65. For example,
article 379 of the Penal Code now punishes not only incitement of a young person
to immorality, prostitution or corruption, as was formerly the case, but also
all acts undermining morality or aimed at facilitating or fostering immorality,
prostitution or corruption of a young person under 18 years of age. Similarly,
the above-mentioned Act of 31 May 1999 punishes the exploitative use of a minor
under 18 years of age in prostitution or pornographic performances or materials,
as well as the traffic in minors for purposes of exploitation.

66. The Act also
supplements article 379 bis of the Penal Code, which punishes, inter
alia, the hiring, influencing or enticement of a person, even with his or
her consent, for purposes of prostitution or immorality, by extending the cases
carrying increased sentences referred to in the preceding text to include not
only situations where the victim has been hired, influenced or enticed fraudulently
or with violence, threats, abuse of authority or any other means of coercion
and situations where the victim has actually been made to engage in prostitution
or immorality, but also situations where the perpetrator of the offence has
taken unfair advantage of a person’s particularly vulnerable situation, such
as an illegal or precarious administrative situation, pregnancy, illness, disability
or physical or mental impairment.

67. The Act also
introduces a new article to the Penal Code (art. 384) establishing penalties
for the possession of pornographic material featuring children and increasing
all applicable penalties.

68. Sexual harassment,
which is considered to be degrading treatment, is now punishable under the Act
of 26 May 2000 concerning protection against sexual harassment at work and amending
various other laws. The lawmakers have thus shown that they are determined
to take effective action against sexual harassment, a reflection of societal
violence, through national labour legislation.

II. INFORMATION ON
THE ESTABLISHMENT OF NEW INSTITUTIONS
AND THE ADOPTION OF SOME
SPECIAL MEASURES

69. In
view of Luxembourg’s commitment to democratic values, the Government, which
is aware of the fact that a multisectoral, coherent policy in that area is essential,
deemed it appropriate to set up a forum for analysis and innovation to achieve
a dynamic partnership with civil society that will also be responsible for developing
a human rights education programme.

70. On 26 May
2000, the Government therefore introduced regulations of the Government in council
establishing the Advisory Commission on Human Rights.

71. The Commission
is an advisory body to the Government and is responsible for assisting it, through
studies and opinions, on all general human rights issues throughout the territory
of the Grand Duchy of Luxembourg.

72. The Commission
issues opinions and prepares studies, either on its own initiative or at the
Government’s request, and can propose measures and programmes of action to the
Government which it considers conducive to the protection and promotion of human
rights, in particular in academic, university and professional circles.

73. The Commission
also acts as national correspondent for the European Monitoring Centre for Racism
and Xenophobia.

74. The Act of
31 May 1999 establishing the Grand Ducal police force and the General Police
Inspection Department, whose main objective is in fact to merge the police and
the Gendarmerie, two institutions which have in the past functioned independently
from each other, also set up a new institution, the General Police Inspection
Department, which is responsible for monitoring the Grand Ducal police and is
fully independent from it.

75. It has a
twofold monitoring function covering both the lawfulness of police activities
and the quality of police services. It works essentially on behalf of the Minister
of the Interior, the Minister of Justice, the Public Prosecutor and the other
judicial authorities.

76. Through the
Act of 14 August 2000 approving the Rome Statute of the International Criminal
Court, done at Rome on 17 July 1998, Luxembourg approved the Statute of the
International Criminal Court, a permanent and independent court which tries
the most serious crimes of concern to the international community as a whole.

77. As the Court’s
jurisdiction is unlimited ratione temporis and ratione loci, it
includes the crimes of genocide (art. 6 of the Statute), crimes against humanity
(art. 7) and war crimes (art. 8).

78. With regard
to crimes against humanity, article 7 of the Statute explicitly defines torture
as an act which may be defined as a crime against humanity when perpetrated
as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack.

79. In its opinion
of 4 May 1999 (parliamentary document No. 4502/1), the Council of State explained:
“The Council of State wishes to draw attention to the provision contained in
article 31, paragraph 1 (c), of the Statute. This provision, which is
included among the grounds for excluding criminal responsibility, might prove
to be weaker than those of other international law instruments to which Luxembourg
is a party. These are, inter alia, the International Covenant on Civil
and Political Rights (art. 4, para. 2) and the Convention for the Protection
of Human Rights and Fundamental Freedoms (art. 15). Another such instrument
is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (art. 2, para. 2). These international law instruments
do not permit the use of torture under any circumstances whatsoever, even in
cases of war or threat of war, for example. This provision may be compared
with article 22, paragraph 3, of the Statute, which stipulates (…). Consequently,
the provision contained in article 31 of the Statute does not exempt Luxembourg
from its obligations under other international law instruments to which it is
a party and does not require national courts trying cases of prohibited conduct
to examine the criminal responsibility of an accused person in the light of
the provisions of the Rome Statute, which is particular to the International
Criminal Court.”

80. Judicial
placement in a closed psychiatric establishment or service of an accused person
found criminally irresponsible by the judge hearing the case was introduced
by the Act of 8 August 2000 amending:

(a)
Book I, chapter VIII, of the Penal Code;

(b)
Article 3 of the Code of Pre-Trial Proceedings;

(c)
The Act of 26 May 1988 relating to the placement of mentally disturbed persons
in closed psychiatric establishments or services; and

(d)
The Act of 27 July 1997 relating to the reorganization of the prison administration.

81. Former article
71 of the Penal Code, as contained in Book I, chapter VIII, of the Penal Code,
entitled “Grounds for justification or excuse”, provided simply that no offence
was considered to have been committed when an accused was of unsound mind at
the time of the offence or when he or she had been in the grip of an irresistible
force.

82. However,
this solution proved to be unsatisfactory both for the mentally ill offender
and for society, as, when dealing with a mentally disturbed person who had committed
a serious offence, the judge had no choice but to sentence the person in question
to a criminal penalty or to acquit that person, if the mental disturbance was
such that it could be characterized as dementia and the perpetrator of the offence
could be considered to be criminally irresponsible. In the latter case, however,
former article 71 of the Penal Code did not take account of the protection of
the legitimate interests of society against the potential dangers which the
disorders of certain offenders might create. The Act of 26 May 1988 relating
to the placement of mentally disturbed persons in closed psychiatric establishments
or services did allow the placement of such offenders. But placement in such
cases was aimed only at treating the patient and failed to deal with the seriousness
of the offence which he or she had committed. The judicial authority was therefore
deprived of all control over the duration of the placement and it was for the
doctors alone to decide when the patient would be discharged.

83. The Act of
8 August 2000 thus amended the title of Book I, chapter VIII, of the Penal Code
to read: “Grounds for justification, irresponsibility or mitigation of responsibility,
and excuse” and replaces the text of article 71 by the following:

“Article 71.
A person who, at the time of the offence, was suffering from a mental disturbance
which caused him or her to lose discernment or control over his or her acts
shall not be held criminally responsible.

When
examining magistrates or trial courts find that an accused is not criminally
responsible within the meaning of the preceding paragraph and when the mental
disturbance which has caused the accused to lose discernment or control over
his or her acts persists, they shall, by the same decision, order the accused
to be placed in an establishment or service authorized by law to receive persons
subject to a placement measure to the extent that the accused still constitutes
a danger to himself or others. Examining magistrates or trial courts may, if
necessary, assign a lawyer to an accused who has not chosen one himself.

A
placement decision may be appealed or contested in the form and time provided
for in the Code of Pre-Trial Proceedings. However, the placement measure will
continue to be in effect even when an appeal has been filed against the decision
which ordered it.”

84. The Act also
added the following two new articles to the Penal Code, following article 71:

“Article 71-1.
An individual who, at the time of the offence, was suffering from a mental disturbance
which altered his or her discernment or impeded control over his or her acts
remains punishable; however, the court shall take this circumstance into account
in determining the penalty.

Article
71-2. A person who has acted in the grip of an irresistible force
or constraint shall not be held criminally responsible.”

85. For offenders
showing signs of mental disturbance, either in pre-trial detention or while serving
their prison sentence after a final conviction, the applicable legislation is
the Act of 27 July 1997 relating to the reorganization of the
prison administration (article 9: establishment of a special medical section
within the Luxembourg prison for drug-addicted and mentally disturbed detainees).

86. The new Act
has also adapted some provisions of the Act of 26 May 1988 relating to the placement
of mentally disturbed persons in closed psychiatric establishments or services,
which did not provide for the possibility of judicial placement, and added a
new chapter on persons under judicial supervision.

87. As indicated
by the statistics contained in the annex to this report, a large number of inmates
in Luxembourg prisons have been imprisoned for violations of the legislation
to combat drugs and drug addiction. It has been found that many detainees continue
to suffer from drug addiction, even after imprisonment. Consequently, the Minister
of Justice has requested that overall plans should be prepared and implemented
to care for drug-dependent persons in prisons. A brief report on the objectives
and status of the plans is also contained in the annex.

88. In view of
the substantial increase in suicides at Luxembourg prison in Schrassig (see annex
for statistics), the Government requested two French experts to conduct an appraisal
of general conditions of accommodation, care, observation and monitoring of
detainees and to analyse the means used to provide medical care and psychological
supervision for detainees, especially those displaying suicidal behaviour.
On the basis of the experts’ proposals and recommendations, the prison administration
has taken the necessary steps to reduce the suicide risk in prisons to the fullest
extent possible. A copy of the experts’ report is contained in the annex to
this report.

Part
II

INFORMATION
REQUESTED BY THE COMMITTEE

89. Representatives
of the Luxembourg Government submitted Luxembourg’s second periodic report to
the Committee against Torture on 6 May 1999. On that occasion, the Committee
requested additional information, with which it was provided orally by the members
of the delegation of Luxembourg, supported by a written note. It therefore
does not appear necessary to reproduce that information in the present report.

Part
III

INFORMATION
ON MEASURES TAKEN TO GIVE EFFECT TO THE COMMITTEE’S CONCLUSIONS AND RECOMMENDATIONS

90. This part
relates to developments in the subjects of concern referred to by the Committee
during its consideration of Luxembourg’s latest report, on 6 May 1999.

91. The information
contained in part III of this report should be read in the light of the content
of parts I and II and of past reports of the Grand Duchy of Luxembourg.

A. Subjects of concern

92. When it considered
the second periodic report of Luxembourg, the Committee expressed the following
concerns:

(a)
The excessive length and frequent use of strict solitary confinement of detainees
and the fact that this disciplinary measure may not be the subject of appeal;

(b)
The situation of young offenders held in Luxembourg prison;

(c)
The disciplinary regime imposed on minors held in the Socio‑Educational
Centres;

(d)
The fact that the report did not cover all articles of the Convention, particularly
articles 11, 14 and 16.

Subparagraph
(a)

93. Since the
submission of Luxembourg’s second periodic report to the Committee against Torture,
the Chamber of Deputies adopted the Act of 8 August 2000 amending: (a) certain
provisions of the Sale of Medicinal Substances and Drug Addiction Control Act
(amended) of 19 February 1973; (b) the Act of 26 July 1986 on
certain modes of enforcement of custodial sentences.

94. Based on
the recommendations of the Committee against Torture and the European Committee
for the Prevention of Torture and Cruel, Inhuman or Degrading Treatment or Punishment,
the Act of 8 August 2000 was adopted, supplementing the Act of 26 July 1986
on certain modes of enforcement of custodial sentences, in order to guarantee
detainees the possibility of appealing a decision ordering their placement in
strict solitary confinement, either as a disciplinary measure or because they
are reputed to be dangerous.

95. An appeal
may be filed merely by addressing a letter to the prison commission provided
for in article 12 of the above-mentioned Act of 26 July 1986. The commission
must issue a reasoned decision on the appeal within 15 days of the day
on which it was filed.

96. Action is
also being taken to ensure that the period of solitary confinement for disciplinary
reasons does not exceed one month.

97. Solitary
confinement in the two State Socio-Educational Centres (CSEEs) is governed by
the Grand Ducal regulations of 9 September 1992 relating to security and discipline
in the CSEEs (chap. II, art. 11).

98. The above-mentioned
article 11 stipulates, inter alia, that a doctor must examine a detainee
in temporary solitary confinement within 24 hours of the commencement of the
confinement and that confinement must be suspended if the doctor finds that
it is liable to jeopardize the minor’s physical or mental health.

99. Young people
undergoing solitary confinement have the possibility of appeal to the juvenile
court judge, the chairman of the Supervision and Coordination Commission or
the doctor. Psychologists from the Centres’ psychological/social service interview
the young people in question systematically and immediately after solitary confinement
is imposed and their opinion is taken into account by senior CSEE staff.

100. Since the
establishment of a single administrative structure for the two Centres in January 1999,
disciplinary measures have been harmonized.

Subparagraph
(b)

101. Copies of
the report of the Psychological-Socio-Educational Service (SPSE), which was
set up in Luxembourg prison (CPL) in 1999, concerning the supervision of minors
in the prison, together with a memorandum (Dienstvorschrift) by the prison
governor of 12 January 2000, are transmitted to the Committee against Torture
as an annex to the present report.

102. The content
of the memorandum, which is in German, may be summarized as follows:

(i)The strict separation of detained minors
and detained adults is enforced as a matter of principle;

(ii)Every minor is placed in an individual cell;

(iii)Every minor has the right of access to a lawyer. The instructor
ensures that a form requesting the assistance of a lawyer is completed by every
detained minor and sent to the president of the competent bar association;

(iv)The minor is informed of the prison regulations;

(v)Any mail sent to or by a minor must be submitted to the juvenile court
judge, with the exception of mail between the minor and his counsel and mail
sent by the minor to the Head of State, the Government, the Chamber of Deputies,
the Minister of Justice or the Public Prosecutor, which must remain sealed;

(vi)Visiting permits are issued by the juvenile court judge. Visits
always take place in private. Visiting hours are not limited;

(vii)Subject to prior authorization by the juvenile court judge, the
minor has the right, during his leisure hours, to make telephone calls to three
people of his choice on two occasions for up to 10 minutes in every week. This
limitation does not apply to telephone conversations with lawyers or social
workers;

(viii)The CPL administration decides whether personal belongings should be
returned to the minor (e.g. wristwatches, decorative small chains);

(ix)Purchases for the minor, totalling up to Lux F 2,500 a week,
are made when ordered;

(x)If the minor wishes to send money to a member of his family, he must
submit an appropriate request to the CPL administration;

(xi)Minors are allowed to have one television set/playstation of their
own or made available by the CPL and to use it during their leisure hours after
5 p.m. (not at night between the hours of 10.30 p.m. and 7 a.m.), provided that
they participate in scheduled group activities (school, sports, educational
activities). In this connection, they may submit requests to the administration;

(xii)During leisure hours, up to three minors may meet in a cell;

(xiii)Unless decided otherwise by the juvenile court judge, a minor entering
the CPL may, after being examined by a doctor, immediately participate in group
activities (sports, classes, educational activities, walking in the prison yard,
leisure activities);

(xiv)In order to be eligible for rewards, minors must take an active part
in scheduled group activities;

(xv)Under the disciplinary regulations, minors must be dressed when
breakfast is served and their cells must be tidy. If they are untidy, they
may be banned from sport and leisure activities that day and the matter is reported
to the administration;

(xvi)If a minor’s conduct during a group activity is unsatisfactory, the matter
is reported to the administration and the minor is excluded from group activities
for a period to be determined by the administration;

(xvii)A minor who has participated in the activities scheduled for the week
and has behaved well will, as a reward, be authorized to engage in a sporting
activity on one Saturday out of four from 1.15 p.m. to 3.30 p.m., under the
supervision of the instructor, and to visit the lounge on Wednesdays during
leisure hours from 5.30 p.m. to 7.30 p.m.

103. A statistical
survey showing the number of minors placed in the CPL during the period from
1 January 1999 to 31 August 2000 is also annexed to this report.

Subparagraph
(c)

104. General statistics
for the reference year 1999 are given below:

Total
minors admitted:

CSEE-Dreiborn: 122, including 30 new admissions;

CSEE-Schrassig: 90, including 24 new admissions.

Days
present:

CSEE-Dreiborn: 7,628

CSEE-Schrassig: 5,657

Total
in CSEEs: 13,285.

105. Statistics
relating to exceptional disciplinary measures taken pursuant to the Grand Ducal
regulations of 9 September 1992 relating to security and discipline in the CSEEs
are given below:

106. The infrastructure
at the CSEEs has been partially renovated: six cells (measuring 4.10 m x 2 m)
with washbasin and toilet, shower and living area; at Dreiborn, open‑air
area between cells; new ventilation system and intercoms installed.

107. Solitary confinement
in a CSEE constitutes an exceptional disciplinary measure which may be imposed
only with the specific authorization of the governor or his deputy. The duration
of such confinement may not exceed 20 days. Confinement in excess of 10 consecutive
days must be reviewed by the governor, who, for this purpose, will consult the
doctor, the judge who issued the placement order and the chairman of the Supervision
and Coordination Commission.

108. Within 24
hours of entry into a solitary confinement section, a minor must be examined
by a doctor, who will attest to his capacity to undergo this measure.

109. If a detainee
remains in solitary confinement for over 48 hours, the doctor will visit
him again every two days until enforcement of the measure has been completed.
He may order solitary confinement to be stopped at any time if he considers
it prejudicial to the health of the detainee and may recommend that the detainee
be taken to hospital.

110. The governor
or his deputy will visit a detainee in solitary confinement in order to talk
to him about the reasons for that measure. If solitary confinement exceeds
48 hours, the governor or his deputy will regularly visit the detainee
concerned.

111. The instructors
will monitor a minor in solitary confinement by means of regular visits at least
three times a day and will ensure that he is able to take a shower every day,
receive balanced meals and go outdoors for fresh air from time to time.

112. Psychological/social
service staff monitor the psychological condition of a detainee in solitary
confinement, listening to what he has to say and discussing his future plans
with him. Schooling is guaranteed.

Subparagraph
(d)

113. For information
relating to the implementation of the articles of the Convention specifically
referred to by the Committee against Torture, reference may be made to part
I of this report (see part I above, “Information on new measures relating
to the implementation of the Convention”).

B. Follow‑up
to the recommendations made by the Committee against Torture

114. During its
consideration of Luxembourg’s second periodic report, the Committee made the
following recommendations:

(a)
Adopt legislation defining torture, in accordance with article 1 of the Convention,
and consider any act of torture as a specific offence;

(b)
Make legal provision for the possibility of an effective appeal against the
most severe disciplinary measures imposed on detainees and reduce the severity
of these measures;

(c)
End as soon as possible the practice of placing young offenders, including minors,
in prisons for adults;

(d)
Ensure that the obligations arising from articles 11, 12, 14 and 15 of the Convention
are duly respected;

(e)
Submit its third and fourth periodic reports due on 28 October 1996 and 28 October 2000,
respectively, by 28 October 2000 at the latest.

Subparagraph
(a)

115. This has been
done with the adoption of the Act of 24 April 2000 adapting internal law to
the provisions of the Convention against Torture, ratified by the Act of 31
July 1987, which incorporated a new chapter V‑1 in Book II of the Penal
Code (arts. 260-1 to 260-4).

116. For further
details, reference may be made to part I of this report (ibid., art. 2).

Subparagraph
(b)

117. For further
details, reference may be made to section A, subparagraph (a), above.

Subparagraph
(c)

118. In its governmental
statement of August 1999, the Government reiterated its commitment to build
a secure unit for minors within the CSEEs and to provide the Dreiborn and Schrassig
CSEEs with the qualified staff necessary for the proper performance of their
task.

119. On 14 February
2000, the chairman of the Supervision and Coordination Commission, composed
of representatives of the Ministry of the Family, the Ministry of Education
and the Public Prosecutor and the Governor of the CSEEs submitted a precise
schedule to the competent governmental agencies for the construction of a secure
unit within CSEE‑Dreiborn, at an estimated cost of approximately 5 million
euros. The work should be undertaken in 2001 and will thus enable minors to
be detained in a facility other than a prison for adults. As soon as the secure
unit is ready, the current practice of occasionally placing minors in the CPL
will be terminated.

Subparagraph
(d)

120. For further
details, reference may be made to part I, section I, of this report.

18. Act of 26
May 2000 relating to protection against sexual harassment in labour relations
and amending various other laws.

19. Regulations
of the Government in Council of 26 May 2000 establishing the Advisory Commission
on Human Rights.

20. Act of 8
August 2000 amending:

(a)
Book I, Chapter VIII of the Penal Code;

(b)
Article 3 of the Code of Pre-Trial Proceedings;

(c) The Act
of 26 May 1988 relating to the placement of mentally disturbed persons in closed
psychiatric establishments or services; and

(d) The Act
of 27 July 1997 relating to the reorganization of the prison administration.

21. Act of 8
August 2000 amending:

(a) Certain
provisions of the Sale of Medicinal Substances and Drug Addiction Control Act
(amended) of 19 February 1973;

(b) The Act
of 16 July 1986 relating to certain modes of enforcement of custodial sentences.

22. Act of 8
August 2000 on International Judicial Assistance in Criminal Matters.

23. Act of 14
August 2000 approving the Statute of the International Criminal Court, done
in Rome on 17 July 1998, and related parliamentary document No. 4502/1.

24. Statistical
compilation concerning the period from 1 January 1999 to 31 August 2000 on:

Minors;

Detainees placed in strict solitary confinement;

Persons imprisoned (untried and convicted) for drug-related offences.

25. Report of
the Psychological-Socio-Educational Service (SPSE), set up within Luxembourg
prison (CPL) in 1999, concerning the supervision of minors in the CPL,
and memorandum (Dienstvorschrift) by the governor of the CPL of 12 January
2000.

26. Report on
overall plans for dealing with drug-dependent persons in prisons.

27. Report on
possible methods of reducing the suicide risk in prisons to the fullest extent possible.

28. Report on
the training of prison staff.

-----

*For the initial report
of Luxembourg, see CAT/C/5/Add.29; for its consideration, see CAT/C/SR.107
and 108 and Official Records of the General Assembly, Forty‑seventh
session, Supplement No. 44 (A/47/44), paras. 285‑309.
For the second periodic report, see CAT/C/17/Add.20; for its consideration,
see CAT/C/SR.376, 379 and 383 and Official Records of the General Assembly,
Fifty‑fourth session, Supplement No. 44 (A/54/44), paras. 170‑175.

*These documents are
available for consultation in the Office of the United Nations High Commissioner
for Human Rights.